§ 1 – Scope of Application and Parties
These general terms and conditions (“Terms and Conditions”) govern all business relations, in particular any purchase contract (the “Contract”) in relation to the goods (the “Goods”) displayed in the online shop under the web address www.hdmobjects.com (“Online Shop”), between Herzog & de Meuron Objects Ltd, Rheinschanze 6, 4056 Basel, Switzerland, CHE-236.831.502 (“HdM”) and the purchaser, being a consumer in the sense of the applicable law (the “Customer”).
Any terms and conditions of the Customer are hereby expressly excluded and shall only apply if the Parties explicitly agree to them in writing.
§ 2 – Offer, Conclusion of Contract and Deviations
Any information in relation to the Goods is mainly for illustrative purposes and is non-binding. Thus, errors in the presentation, the description or the availa-bility of the Goods remain reserved.
Any presentation or offer of the Goods by HdM does not constitute a legally binding offer, but a non-binding invitation to order. The ordering process consists of the following steps:
a) Selection of the Goods;
b) Confirmation by clicking on the “Add to Cart” field;
c) Review and “Accept” the Goods in the basket;
d) Confirmation of the order by “Proceed to Checkout”;
e) Entering the Customer's data and “Continue to Shipping”;
f) Selection of shipping method and “Continue to Payment”;
g) Selection of payment method and entering billing address; and
h) Binding transmission of the order, payment and acceptance of these Terms and Conditions by clicking on the field “Pay now”.
The order will be forwarded to HdM and the Customer will immediately re-ceive an electronic confirmation of the order by e-mail.
The content of the Contract based on these Terms and Conditions will be saved electronically by HdM after the conclusion of the Contract and sent to the Customer by e-mail. The Customer can also retrieve and save these Terms and Conditions before submitting the order via a link in the Online Shop as well as via a link in the confirmation of the receipt of the order.
HdM reserves the right to make deviations to or adapt the Goods which constitute technical improvements or are necessary due to legal regulations, as well as to replace components of the Goods, insofar and only to the ex-tent as the replacing components are equivalent parts which do not impair the usability of the Good for the contractually intended purpose.
§ 3 – Availability of Goods and Delivery
HdM makes no statement and gives no representation or guaranty in rela-tion to the availability and/or delivery date of the Goods.
The delivery will be made to the delivery address provided by the Customer. The delivery address may differ from the billing address. If no delivery ad-dress is given, delivery will be made to the billing address.
HdM is entitled to make partial deliveries if this does not cause any addi-tional costs for the Customer.
Any times stated for delivery are a bona fide estimate only and, whilst HdM will use its reasonable endeavours to meet any such times stated for deliv-ery, HdM shall not be liable for any delay in delivery howsoever caused.
If the Customer fails to take delivery at the time stated for delivery or fails to give HdM adequate instructions in a timely manner in relation to any matter on which the Customer's instructions are required in order to enable HdM to effect delivery in accordance with the Contract, then, without preju-dice to any right or remedy available to HdM, HdM reserves the right to:
a) store the Goods until actual delivery and charge the Customer (a) the reasonable costs (including insurance) of storage; and (b) interest on the amount payable by Customer for the Goods from the date payment for the Goods would have been due if the Customer had taken delivery of the Goods at the time stated for delivery or had given HdM adequate instructions in a timely manner (as the case may be) to the date of re-ceipt of such amount by HdM; and
b) sell the Goods and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer any shortfall below the price un-der the Contract and in each case charge the Customer interest on the amount payable by the Customer for the Goods from the date payment for the Goods would have been due if the Customer had taken delivery of the Goods at the time stated for delivery or had given HdM adequate instructions in a timely manner (as the case may be) to the date of re-ceipt of the proceeds of sale of the Goods by HdM.
§ 5 – Prices and Shipping Costs
The prices are stated in the currency displayed in the Online Shop and in-clude packaging and the applicable value-added tax. The delivery of the Goods is at the expense of the Customer.
The applicable shipping costs are to be borne by the Customer. The price including VAT and applicable shipping costs will be displayed in the order form before the Customer submits the order.
If the Customer effectively withdraws the order in accordance with clause 7 below, the Customer may, subject to the statutory requirements, demand reimbursement of any costs already paid for shipping to the Customer.
§ 6 – Payment, Set-Off, Right of Retention
If not agreed otherwise in the Order Confirmation, the purchase price is due immediately upon conclusion of the Contract.
The Customer is not entitled to offset against HdM’s claims, unless the Cus-tomer’s counterclaims are legally established or undisputed. The Customer is also entitled to offset against HdM’s claims if he/she asserts notices of defects or counterclaims from the same contractual relationship.
Customers qualifying as consumers under applicable law have a statutory right of withdrawal as follows (the “Right of Withdrawal”):
The Customer has the right to withdraw from the Contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day on which the Customer has acquired physical possession of the (last) good.
To exercise the right of withdrawal, the Customer must inform HdM (at postal address: Rheinschanze 6, 4056 Basel , Switzerland; e-mail ad-dress: firstname.lastname@example.org) of the decision to withdraw from the Contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail) (the “Withdrawal Declaration”).
To meet the withdrawal deadline, it is sufficient to send the Withdrawal Declaration before the withdrawal period has expired.
The Customer shall send back the Goods or hand them over to HdM without undue delay and in any event not later than 14 days from the Withdrawal Declaration. The Customer will have to bear the costs of returning the Goods.
In case of an exercise of the Right of Withdrawal,
a) the Customer shall send back the Goods or hand them over to HdM without undue delay and in any event not later than 14 days from the Withdrawal Declaration. The Customer will have to bear the costs of re-turning the Goods. HdM shall reimburse all payments received from the Costumer, including the costs of delivery, without undue delay and in any event not later than 30 days from the Withdrawal Declaration.
b) HdM will carry out such reimbursement using the same means of pay-ment as used for the initial transaction, unless the parties have ex-pressly agreed otherwise. HdM may withhold reimbursement until re-ceipt of the Goods.
The Right of Withdrawal does not apply to any Contract for the supply of Goods that are not pre-fabricated (“made to order”) and the production of which is governed by an individual choice or decision by the Customer, or that are clearly tailored to personal needs of the Customer.
HdM shall replace any Goods which are defective or which do not otherwise comply with their specification provided that:
a) notification of the alleged defect received in writing by HdM with full particulars thereof within 14 (fourteen) days of the date of delivery of the Goods or (where delivery of the Goods is delayed as a consequence of any act or omission on the part of the Customer and, pending deliv-ery, the Goods are released to the order of the Customer) within 14 (fourteen) days of the date of release of the Goods to the order of the Customer, whichever is the earlier;
b) HdM is notified in writing with full particulars immediately upon discov-ery of the alleged defect or non-compliance and HdM is afforded the opportunity of inspecting the Goods at the premises of the Customer;
c) the alleged defect or non-compliance is not caused by any act happen-ing or omission occurring in each case after the time when risk in such Goods has passed from HdM to the Customer;
d) the alleged defect or non-compliance is not due to any act or omission on the part of the Customer; and
e) such Goods are not used by the Customer.
The provisions contained in this clause 8 above are expressly in lieu of any and to entire exclusion of all conditions, warranties, liabilities whatsoever whether express or implied by statute, usage or otherwise.
The Customer forfeits any rights for defects in the event of improper use of the Goods. Defects resulting from normal wear and tear or as a conse-quence of improper handling or damage by the Costumer or third parties as well as defects attributable to external circumstances (improper storage, frost, heat, humidity, incorrect storage, etc.) do not entitle the Costumer to withdraw from the Contract or to replace the Goods.
HdM shall not be liable for any defect in the Goods or for any failure of the Goods to otherwise comply with their specification or for any injury or loss resulting from the Goods or from any such defect or non-compliance, whether in contract, tort or otherwise. In particular, HdM shall not be liable for damage that has not occurred to the Goods themselves.
In the event that HdM shall be liable to replace any Goods, in no circum-stances shall HdM's liability extend beyond the cost of replacing such Goods and in particular (but without limitation) HdM shall not be liable for any consequential loss, loss of profit, indirect and/or punitive damages whether in contract, tort or otherwise.
Any liability of HdM in connection with any offer (in particular incorrect illus-trations, texts and prices) and the delivery shall be excluded to the extent permitted by law.
HdM shall be liable for any culpable breach of material contractual obliga-tions in accordance with the statutory provisions. Material contractual obli-gations are obligations, the performance of which characterize the contract are necessary for the proper performance of the contract and on the ob-servance of which the Customer can regularly rely. For damages arising from injury to life, body or health, HdM shall be liable in accordance with the statutory provisions. In all other cases, and subject to gross negligence or intentional conduct, HdM’s liability for any damage or costs out of or in connection with any offer, the Contract (including these Terms and Condi-tions) is excluded.
HdM’s liability under mandatorily applicable product liability law remains un-affected.
§ 10 – Transfer of Property and Passing of Risk
Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Terms and Conditions, the Goods shall remain the sole and absolute property of HdM until such time as HdM has in respect of the Goods received in full, cash or cleared funds of and payment under the Contract.
HdM reserves the right provided for by Art. 214 CO to rescind the Contract and claim the return of the delivered Goods.
Until such time as property in the Goods shall pass to the Customer (if ev-er), the Customer shall keep the Goods:
a) separate from any goods of the Customer or of any third parties; and
b) properly stored, protected and (if requested by HdM) identified as HdM's property.
Until such time as property in the Goods shall pass to the Customer (if ev-er), the Customer shall not be entitled to sell or otherwise dispose of the Goods without the prior written consent of HdM.
HdM collects, processes or uses personal data only within the framework of data protection regulations. Details can be found in the data protection dec-laration, which is available at https://www.hdmobjects.com/pages/privacy and which can also be re-quested from HdM at any time.
The data necessary for the business transaction in relation to any Goods will be treated confidentially. The Customer agrees to the processing of his or her personal data by HdM for marketing purposes, in particular to the col-lection, storage, administration, use, transmission, disclosure, anonymisa-tion or deletion of the personal data.
The data may be processed by third parties (outsourcing) and abroad in ac-cordance with the Swiss Data Protection Act (DSG). Cookies are used to process orders in the Online Shop. HdM may use analysis tools for its web-site, such as Google Analytics or e-Tracker, or place social plugins on the website. The resulting data may be transported abroad due to the server location and processed there. Currently, data (hosting of the Online Shop) is initially processed in Ireland and then will be transferred outside of Eu-rope for storage and further processing, including to Canada and the United States. The Customer acknowledges that the legislation in the country of the recipient for the processing of data does not in all cases provide protec-tion equivalent to the legislation in Switzerland.
By placing an order online, the Customer accepts the future electronic de-livery of information and advertising mailings. This consent may be revoked at any time by e-mail, letter or telephone. No liability is assumed for the security of data transmitted via the internet. The transmission of data may be unencrypted.
§ 12– Intellectual Property Rights
HdM, on its own behalf or on the behalf of its business partners, reserves any and all rights to (i) all pictures, films and texts published (the “Materi-al”) (ii) any invention, original work of authorship, development, concept, improvement or trade secret, whether or not protected by intellectual prop-erty rights (i.e., patentable or registrable as a design or trademark or pro-tected by copyrights or similar laws), and whether registered or not (collec-tively the “Rights”) in relation to the Goods.
Any use of the Material is only permitted upon HdM’s prior consent in writ-ing.
Neither by means of the Contract nor these Terms and Conditions, HdM as-signs or otherwise transfers any Rights to the Customer.
HdM is not be responsible for any loss, damage, delay or non-performance of the Contract arising whether directly or indirectly from any cause outside the control of HdM including (but without limitation) any cause arising from or attributable to strikes, lock outs or other industry disputes, shortage of labor or materials, government order, rule, regulation or direction of any ju-risdiction, civil commotion, riot, war, sabotage, storm, flood, earthquake, fire, explosion, drought, machinery breakdown, failure of plant or collapse of structures, voluntary or mandatory compliance with any direction, re-quest or order of any person having or appearing to have authority whether for defense or other governmental or national purpose, inability to obtain materials, equipment, fuel power, components or transportation.
In the event of any delay or non-performance of the Contract arising whether directly or indirectly from any cause referred to in this clause 14 above for a period in excess of 6 (six) months, HdM shall be entitled at any time thereafter to cancel the Contract by notice in text form to the Cus-tomer without compensation to the Customer in respect of any loss or damage.
If any of the provisions of these Terms and Conditions shall be found to be void or unenforceable, such provision shall be deemed to be deleted from these Terms and Conditions and the remaining provisions of these Terms and Conditions shall continue in full force and effect and the Parties shall use their respective reasonable endeavors to procure that any such provi-sion is replaced by a provision which is valid and enforceable and which gives effect to the spirit and intent of these Terms and Conditions.
The Customer shall not be entitled to assign and/or transfer to any third parties the Contract and/or any rights and obligations deriving from the Contract, without the prior written consent of HdM.
§ 15 – Complaints and Online Dispute Resolution for Consumers
HdM can be reached by mail (email@example.com). Orders, enquiries, complaints and other declarations of intent are to be sent to this address.
Information on alternative dispute resolution in consumer matters:
The European Commission provides for a platform for online dispute resolu-tion (so-called ‘ODR platform’). The ODR platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obliga-tions arising from online purchase contracts. The ODR platform can be ac-cessed via the following link: https://ec.europa.eu/consumers/odr.
§ 16 – Applicable Law and Jurisdiction
The relationship between the Parties (including, without limitation, the Con-tract and these Terms and Conditions) shall be exclusively governed by the provisions of Swiss law, with the exclusion of its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any dispute arising out of or in connection with the Contract and/or these Terms and Conditions, including any question regard-ing its existence, validity or termination, shall be referred to and finally set-tled by the ordinary courts of Basel, Switzerland.
Notwithstanding the aforesaid, if the Customer qualifies as a consumer in the sense of the applicable law, the mandatory provisions of such law re-main reserved. In such cases, the place of jurisdiction and the law governing the Contract and/or these Terms and Conditions shall be determined by those mandatory consumer law provisions.